How will the Justice Department investigation in Ferguson work?

September 4, 2014 at 8:48 PM EDT

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Judy Woodruff speaks with Robert Driscoll, former Deputy Assistant Attorney General, and Tracie Keesee, Center for Policing Equity, on what to expect from the Justice Department’s civil rights investigation of the Ferguson police department.

JUDY WOODRUFF: Ferguson Police Chief Thomas Jackson met with federal officials yesterday, and said he would welcome the investigation. He said his department has no intentional policies that lend themselves to discrimination.

But there is a broad racial disparity between the force and the city it polices. Ferguson, with a population of 20,000, is two-thirds African-American. The police department has 53 officers and only four of them are black. A 2013 report by the Missouri attorney general found Ferguson police stopped and arrested black drivers nearly twice as frequently as they stopped white drivers.

In recent years, the Justice Department has stepped up its own investigations of police agencies. There’ve been 20 such investigations in the past five years, including high-profile probes in New Orleans and Albuquerque. That is more than double the number in the previous five years.

We get some insight on how this investigation might unfold with Robert Driscoll. He’s a former deputy assistant attorney general in the Civil Rights Division of the Department of Justice during the George W. Bush administration. He’s now a partner at the firm Friedlander Misler here in Washington. And Tracie Keesee, she is co-founder of the UCLA Center for Policing Equity. She’s a 25-year veteran police officer.

And we welcome you both to the “NewsHour.”

Robert Driscoll, to you first.

How is an investigation like this different from the other investigations that are under way on what happened in Ferguson?

ROBERT DRISCOLL, Former Justice Department Official: This investigation won’t look at any individual instance. They’re really looking for policies and procedures and patterns of possible unconstitutional behavior by the Ferguson Police Department.

So they will be looking at data and looking at scores of incident reports and reviewing that with policing experts they will bring in to try to reach some conclusions about whether there are any unconstitutional practices that can be changed.

So no one will be going to jail. There’s no risk of anyone going to jail at the end of the investigation, and there won’t be any money damages paid. What the Department of Justice will be seeking will be reforms of the police department if they find such a pattern. And they will get that through either a memorandum of agreement or some sort of court-enforced consent degree.

JUDY WOODRUFF: And I want to ask you about that in a minute.

Tracie Keesee, I took some notes at the attorney general’s news conference today, and I noticed they said they were going to be looking at several things, use of excessive use of force, stops, searches, and arrests, treatment of detainees in jail, and just discriminatory practices generally.

Can you flesh out for us, what exactly are they looking at, at the department? Are they looking at police records? Will they be interviewing people? How does this work?

TRACIE KEESEE, Co-Founder, UCLA Center for Policing Equity: Well, it’s a combination of those things. And I think, as it was stated before, you have to kind of go back.

If you’re looking for patterns and practices, you have got to go back a way. So, it’s not going to be just what happened in the last year. You’re really trying to determine if any of those policies are influencing the way officers on the street make their decisions.

So, they will be looking at use of force, they will be looking at training. They will be meeting with the community. I’m sure that has already started. There will be discussions internally in that organization as well. So they look at a myriad of things because they have to really get a good picture of what’s going on in regards to policing in Ferguson.

JUDY WOODRUFF: I guess I’m curious to know, Robert Driscoll, how it works. Here, you have the great, big Justice Department in Washington, D.C., investigating a 53-person police department in the little city of Ferguson, which is actually a suburb of Saint Louis, and trying to — we’re trying to get our arms around about how this works.

Do they send a whole fleet of people in there to do interviews over a period of years? How does it work?

ROBERT DRISCOLL: It certainly won’t take years, but it will take certainly weeks and well into months.

They will send in probably, in my experience, a team of maybe four to five to six DOJ Civil Rights Division attorneys, and they will probably have one lead expert and maybe a second expert to look at the jails, and they will interview command staff of the police department.

This is a very small police department for one of these investigations, and so it will be I think probably a little bit challenging to find patterns and practices. This isn’t a department like Detroit, New or York City or even New Orleans, where you have enough data that you can really see some trends. With 53 officers, it is going to be a little more challenging. But they will look at how the officers are trained and they will look at the policies and see what they find.

JUDY WOODRUFF: Tracie Keesee, what would you add to that in terms of what they’re looking at and how this will work?

TRACIE KEESEE: Well, I think that the things that we have already named are going to be critical, but they are also going to speak with the community. And that is another piece.

One of the issues that they will look at, what you have in a lot of small departments is turnover. So how many officers come through there? We always have talked about since Ferguson began was the diversity, the ability to recruit and retain. All of those things are going to be on the table. What are those recruitment policies? How do you hire people? So that is going to be another aspect of what they’re going to look at as well.

And I think, again, the community component of this is going to be — really going to add some additional information to that investigation.

JUDY WOODRUFF: I was actually surprised that they — at this news conference today, they said that hiring practices were not something they were going to initially look at. And why would that be?

ROBERT DRISCOLL: I think that’s likely just an internal Justice Department matter and that there’s a separate section of the Civil Rights Division that handles employment and public employment, and they will have to open up a separate matter to do that.

They certainly have the authority to do that broadly when you’re looking at DOJ as a whole. Certainly, Attorney General Holder could direct such an investigation at some point if they get some unemployment data they don’t like. But I think that this unit of lawyers likely won’t be looking at the employment aspect of it directly.

They could be looking at racially biased policing and other things, and maybe get at it a little bit that way, but the direct employment matter would be different.

JUDY WOODRUFF: Tracie Keesee, what… Go ahead. I’m sorry.

TRACIE KEESEE: I’m sorry. No.

And, obviously, to add to that, too, part of the community conversation will be about the type of policing that the community should have. And I think that is going to be critical as well, especially — to me, that’s a direct tie-in to employment and what you do look at when you’re trying to hire people.

JUDY WOODRUFF: Will there be overlap, staying with you Ms. Keesee,, with the grand jury investigation that is already under way and the other investigations that are under way into what happened last month in the death of Michael Brown?

TRACIE KEESEE: Well, from what I’m understanding, this is really separate.

This is beyond what’s going on, on the side, criminal investigation. You’re really now looking at the operations of the department itself and the policies of the department. So, those are two separate things.

JUDY WOODRUFF: And we know, Robert Driscoll, and I think you were suggesting a minute ago it’s not intended to lead to criminal prosecution. It’s to reforms in the police department. We know this Justice Department has already investigated several other, as we said, high-profile police departments in the country.

ROBERT DRISCOLL: Right.

JUDY WOODRUFF: Do those investigations change the way these departments work?

ROBERT DRISCOLL: They can over time.

And it’s a long process. This is not — it’s a long process. The investigations take a while. They can take over a year to reach findings and then negotiate a resolution with the city. It depends on what they find. We can’t forget there’s a possibility they won’t find that the Ferguson Police Department has — they have to tie what they want to do to unconstitutional acts by the department, and they have to find enough of them to prove a pattern and practice and then negotiate a settlement.

So the reforms take time. And then once the reforms are implemented, they take time to sometimes take hold, because they’re really talking usually about changing a culture if they do find a place that has a pattern of unconstitutional conduct.

JUDY WOODRUFF: And, Tracie Keesee, how do you see something like that unfolding? We don’t know what they are going to end up recommending, but if there is a memo of understanding, is that what it’s called, at the end of this process? How does that work?

TRACIE KEESEE: Well, absolutely, and especially if the organization is cooperative and they can come to some agreement.

And I think that, for most agencies, that’s the best way to go. And I think we have heard during the interview that Ferguson P.D. is more than open and more than willing to take a look at what they have got going on and making any changes that they think will help definitely their form of policing.

But as it was stated, these things take time, and the problem with that is often the community doesn’t have the patience for the time that it does take for those investigations and those initial implementation of the changes of policies. And it’s not just the changes. They do have to take hold. So you have to have some sustainment there over a period of time.

JUDY WOODRUFF: And it’s interesting the Justice Department announced this investigation just within a month after — after the initial shooting.

Well, we thank you both for joining us, Tracie Keesee joining us and Robert Driscoll. We appreciate it.

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